May 20, 2017

A Long Battle Ahead

The following article originally appeared in The Times of India on 20 May 2017. The full text can be found here.

On May 18, the International Court of Justice (ICJ) – the
principal judicial arm of the United Nations – ruled on the case of Kulbhushan
Jadhav, whom Pakistan alleges is an Indian spy. The court unanimously declared
that Pakistan must take all measures at its disposal to ensure that Jadhav is
not executed, pending a final judgment of the court. What are we to make of
this ICJ decision?

First, the matter is far from over. The court simply
determined that it had jurisdiction in this case, despite Pakistan’s arguments
to the contrary. It also stated that the rights alleged by India were
plausible, that there was a clear link with the measures being sought by India,
and that the matter was urgent as Jadhav faced a death sentence which – if
carried through – could not be reversed.

Second, India’s case concerns Pakistan’s violation of the
Vienna Convention on Consular Relations, not so much the merits or
circumstances of Jadhav’s death sentence. Since his Indian citizenship was not
in question, Pakistan should have allowed Jadhav to meet with Indian government
representatives. The recent ICJ ruling should thus be seen as a reprieve that
buys India time, and has little direct bearing on the overall circumstances of
Jadhav’s arrest and sentencing.

The indirect implications are, however, far more
significant, as they raise questions about why Pakistan denied Jadhav consular
access in the first place. The element of irreparable prejudice and urgency in
ICJ proceedings also highlight just how incredibly unusual it is for any
country to execute an alleged foreign spy in peacetime, when life imprisonment
is usually the harshest sentence. Moreover, the entire episode portrays the
rule of law in Pakistan in an incredibly poor light. Questions remain about the
circumstances of Jadhav’s arrest and detention (India believes that he was
kidnapped from Iran). A video released by Pakistan in which Jadhav appears to
admit his guilt is suspicious, and suggests that it was forced or done under
duress. And the opacity of the legal process – in a Pakistani military court,
no less – that resulted in his death sentence is very disturbing.

Third, we must look upon this as a political victory for
India as much as a legal one. ICJ is an international court, and like much
international law, the court lacks appropriate enforcement mechanisms. In the
past, parties – including the United States – have ignored ICJ rulings
concerning the Vienna Convention and executed citizens of other countries, although
not for alleged espionage. Yet should Pakistan now ignore ICJ and execute
Jadhav, it will clearly be an act of bad faith.

Two other criticisms that have been made in India
concerning the decision to go to ICJ should be addressed. First, concerns have
been expressed that India might be unnecessarily internationalising relations
with Pakistan by taking this case to ICJ. This should not be a major concern.
India’s position on ICJ’s jurisdiction is clearly stated, and based on its
declarations recognising the jurisdiction of the court as mandatory, which were
submitted in 1974. India’s determination, however, was that a matter related to
the Vienna Convention overrode its own stated objections to the jurisdiction of
the court, specifically that such jurisdiction would not extend to disputes
between two current or former Commonwealth members.

Finally, questions have been raised as to whether this
was a necessary step, or the best recourse. For this, the answer must be found
in ICJ’s statement. Given that this is a death sentence and that the
circumstance of Jadhav’s trial and detention are suspect, it was necessary to
do everything possible to delay his execution. Going to the ICJ and thus
overriding prior concerns about internationalisation was one way of doing so,
and given the court’s stay order, has proved successful for that limited
purpose.

Overall, the ICJ stay on Jadhav’s execution is a
political victory for India, one that casts aspersions on Pakistan’s goodwill
and the rule of law in that country. But it should be seen for what it is: the
start of what may still be a long and messy process to bring Jadhav home.